Evidence of meeting #31 for Access to Information, Privacy and Ethics in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was rcmp.
A video is available from Parliament.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
This predates what we're talking here. It was 2017 for ODITs, so are you saying that we've been using this technology since 2012?
A/Commr Mark Flynn
I can add some clarification to that. It goes back prior to 2012. I can add some clarification to that when you're ready.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
So we use this technology, hopefully respecting part VI of the Criminal Code that charter rights have been protected.
How often have you used it under national security provisions where you don't have to get a warrant, going back to 2012 or before? We're talking ODIT and we're also talking, I believe it was your special investigation unit “I”, right?
A/Commr Mark Flynn
From my involvement, again going back for many years as well as my current position in national security, we have never utilized this tool without prior judicial authorization.
Having said that, if a situation were to arise that required it, there are provisions that allow us and certain designated individuals to utilize this type of tool for the interception of communications in emergency situations, but I am not aware of any situation where that has been done, and the mere practicality of deploying this type of tool and technique would take it beyond the time period under which such an authorization would be valid.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
When it is a national security issue, or it's somebody like Canadian Navy former lieutenant Jeffrey Delisle back in 2012, are you saying that this would have been probably used in that situation? Knowing that he was a member of the Canadian Armed Forces, knowing that there may be people of interest within the RCMP, do you still have to go through the process of getting a warrant to protect their charter rights and the Criminal Code part VI, or can you on staff surveil them or use spyware without their knowledge and without the consent of the justice system?
A/Commr Mark Flynn
I can say unequivocally that in that case and in any other similar case, we have utilized the prior judicial authorization for doing so, and not obtaining such judicial authorization would be a violation of Part VI of the Criminal Code because part VI contains the privacy invasion provisions under the code and we would not do that. We are a professional organization that operates under the law.
Conservative
James Bezan Conservative Selkirk—Interlake—Eastman, MB
As a professional organization that has used a type of spyware since 2012 or sooner, why did it take until it became public information? Why did you never consult with the Office of the Privacy Commissioner before that?
A/Commr Mark Flynn
I can speak again from a long-standing history in the Special “I” program, and as we follow through the evolution of the use of this technology, as encryption started to be used by targets that we had judicial authorization to intercept, and we were unable to hear the audio, hear the phone calls or see the messages they were sending, that is when we developed the tool and technique to make it possible to intercept those communications.
But it's important to note the privacy invasion isn't coming from the tool utilized. The privacy invasion is coming from capturing that audio or capturing that text message or capturing that communication that is occurring between two individuals, and we have evolved in the use of the tools as individuals evolve in the way they communicate.
Conservative
The Chair Conservative Pat Kelly
Thank you. No, you're over time a fair bit there, but I wanted to let that answer go—
Conservative
The Chair Conservative Pat Kelly
—without interrupting, but we must now go to Ms. Khalid for up to six minutes.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you, Chair, and through you, thank you to our witnesses for appearing today.
Just to put all of this into context, I'll start by asking how many investigations have been conducted by the RCMP in general over the past five years?
Sergeant Dave Cobey Sergeant, Technical Case Management Program, Technical Investigation Services, Royal Canadian Mounted Police
Chair, through you, are you asking about the total number of investigations?
Liberal
Sgt Dave Cobey
As I sit here right now, I don't know that number, but it would be a very large number.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Okay, and out of that very large number, how many of those investigations used ODITs? I heard it was 32 or 35, and I just wanted to clarify that.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
And how many of those investigations were conducted without a warrant?
Sgt Dave Cobey
Mr. Chair, through you, every one of those 32 investigations had a judicial authorization to use ODITs.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
And what kind of criminal activities were in question the times that ODITs were used within these specific cases?
Sgt Dave Cobey
Mr. Chair, I believe that information was in the package that was provided.
It breaks down into several different types. The most investigations are related to terrorism or serious drug trafficking investigations. There were also five murder investigations and there were also some breach of trust investigations, one of those being the investigation of a police officer's activities. But for the total, all combined, there were 32, and all 32 investigations had at least one offence that was under section 183, which the minister mentioned the previous meeting. Those are all serious offences.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you.
The RCMP is subject to the Privacy Act. What practices do you use in general within your department to ensure that your device investigation tools comply with the Privacy Act?
Sgt Dave Cobey
I can say, as of most recently when we initiated our national technology onboarding program, really, the genesis of that program was the OPC's report of Clearview AI. As a result of that report, one of the recommendations that the OPC made and which the RCMP agreed to implement was to have a more centralized process to ensure all privacy-related considerations were followed, including assessing early in the process whether a PIA is required, and if yes, ensuring that PIA is written as well as other internal RCMP requirements related to data security, and whether a warrant is required. If a warrant is required the terms and conditions and language needed to properly describe technologies are included in that warrant and things like that.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
We heard from the OPC earlier today that it took a while for the RCMP to get to them. Why is that?